A ‘Closer Look’ at the Senate’s Troubled Judicial Confirmations Process

August 13, 2011

by Jeremy Leaming

Following his recent critique of senators' failure to move on judicial nominations before they left town, after spending most of the summer wrangling over a largely ridiculous discussion regarding national debt, the Atlantic’s Andrew Cohen takes a closer look at the increasingly troubled Senate process for confirming judges.

Cohen notes that since President Obama’s inauguration 89 federal judges have been confirmed, 41 with no objection.

Looking at a group of judges who have garnered some opposition during a final vote, Cohen may not “necessarily” be convinced that the Senate’s obstructionists have a problem with bringing much needed diversity to the federal bench – a large share of the judicial nominees who have seen the longest delays in the confirmation process have been women or minority nominees – but he is disconcerted over a process that includes an increasing amount of politically fueled waste.

These confirmations additionally “have come at a much slower pace than we saw either with the Clinton Administration or during the era of George W. Bush,” Cohen notes.

Of the confirmed judges he looks at many were put through lengthy confirmation processes because of past work and/or affiliations – Sen. Jeff Sessions (R-Ala.), for example, grumbled often over nominees with ACLU affiliations.

Judges Edward M. Chen and William J. Martinez received a rough going, in part, because of their work for ACLU. “Like Judge Martinez, Edward Chen,” Cohen writes, “evidently was touched with the ‘ACLU gene,’ which rendered him objectionable to Senate Republicans.”

Judge John J. McConnell’s nomination was held up because “Senate Republicans didn’t like him because the U.S. Chamber of Commerce didn’t like him because, as a lawyer, McConnell had successfully sued Big Tobacco and fought for hose harmed by lead paint.”

Cohen concludes, in part, that “the high percentage of jurists who ultimately are confirmed with little or no opposition, 77 out of 89 as we have seen, make the Senate look worse, not better. There should be a special place reserved in political hell for any senator, of any party, who votes for a judicial nominee after voting procedurally against that candidate’s ability to get a vote on the merits of her nomination. Such antics are a waste of time, a waste of money, and a waste of the use of precious human resources (the nominees themselves). Right now, the Senate has confirmed 50 fewer Obama appointees than it had for the same period of the presidency of George W. Bush.”

For analysis and updates of the judicial confirmations process visit JudicialNominations.org.